State Central Authority and Henfold

[2010] FamCA 1172

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & HENFOLD [2010] FamCA 1172

FAMILY LAW – CHILD ABDUCTION – Hague Convention on the Civil Aspects of International Child Abduction – Habitual Residence – Consideration of LK v Director-General, Department of Community Services (2009) 237 CLR 582 – Whether a person is habitually resident in a Convention State or is nomadic

Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) s 111D
Family Law (Child Abduction Convention) Regulations 1986 Regulation 14(1), Regulation 16, Regulation 29(2)
Hague Convention on the Civil Aspects of International Child Abduction (1980)

Briginshaw v Briginshaw (1938) 60 CLR 336
LK v Director-General, Department of Community Services (2009) 237 CLR 582
Secretary of the Attorney-General & Stamatelos [2008] FamCA 1117
State Central Authority & Perkis [2010] FamCA 649

APPLICANT: Secretary of the Attorney‑General’s Department (Cth) as State Central Authority

RESPONDENT: Mr Henfold

FILE NUMBER: CAC 1364 of 2010

DATE REASONS DELIVERED: 27 October 2010

DATE ORDERS ENTERED ON THE

RECORD:

10 November 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks ACJ

HEARING DATE: 26 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A. Berger

SOLICITOR FOR THE APPLICANT: Australian Government Solicitor

COUNSEL FOR THE RESPONDENT: Mr G. Howard

SOLICITOR FOR THE RESPONDENT: Farrar Gesini & Dunn

Orders

Orders of 27 October 2010

1. Final orders are to be settled by the parties by agreement, or alternatively by the Court failing agreement, in accordance with the Judgment of the Court, within seven (7) days of the date of Judgment.  Final orders will then be incorporated into the formal version of this Judgment. 

2. A copy of this Judgment may be provided to the solicitors representing the mother, Ms Henfold, in the family law proceedings known as Henfold & Henfold CAC 1112 of 2010.

Final Orders – entered on the record 10 November 2010

IT IS ORDERED BY CONSENT AS TO THE FORM OF THE ORDERS THAT:

1. The Respondent shall deliver Y (the child) to the child's mother, Ms Henfold (the mother), in Hawaii in the United States of America (USA) by accompanying him on an airline flight(s) to Hawaii on or before midnight 24 November 2010 (Hawaii time).

2. The Respondent shall advise the mother of the details of the flight(s) referred to in order (1) above at least 48 hours prior to the scheduled arrival in Hawaii.

3. The Respondent shall meet his own costs associated with travelling to Hawaii, USA.

IT IS NOTED THAT:

1. The mother has agreed to pay the costs associated with purchasing the airline ticket for the child to travel to Hawaii, USA.

2. The Respondent agrees to withdraw the related proceedings he has commenced in the Family Court of Australia (Henfold & Henfold (P)CAC 1112/2010).

IT IS NOTED that publication of this judgment under the pseudonym State Central Authority & Henfold is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1364 of 2010

SECRETARY OF THE ATTORNEY-GENERAL’S DEPARTMENT (CTH) as STATE CENTRAL AUTHORITY

Applicant

And

MR HENFOLD

Respondent

REASONS FOR JUDGMENT

Introduction  

1. Pursuant to Regulation 14(1)(a)(i) of the Family Law (Child Abduction Convention[1]) Regulations 1986 (Cth) (the Regulations), the Secretary of the Attorney-General’s Department (Cth) (the Central Authority) seeks a return order in relation to the child of the parents, Y, born in August 2008.  If the return order is granted by the Court, the child would need to be returned to the USA, where his mother presently resides. 

   [1] Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the Hague Convention), entry into force 1 December 1983. 

2. The question of habitual residence is the dispositive issue in this application. 

Relevant Law

1. Pursuant to Regulation 16(1) of the Regulations, the Court is obliged (subject to Regulation 16(3)) to make an order for the return of the child if:

   a)an application for a return order for a child has been made; and

   b)the application is filed within one year of the child’s removal or retention; and

   c)the Central Authority has satisfied the Court that the child’s removal or retention was wrongful (within the meaning of Regulation 16(1A)).

2. A wrongful retention has occurred if (Regulation 16(1A)):

   d)the child is under the age of 16 years; and

   e)the child habitually resided in a Convention country immediately before the child’s retention in Australia; and

   f)the person seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s retention in Australia; and

   g)the child’s retention in Australia is in breach of those rights of custody; and

   h)at the time of the child’s retention, the person was:

   i)actually exercising those rights of custody (either jointly or alone); or

   ii)would have exercised those rights if the child had not been retained.

1. The Court has the discretion to refuse to make an order for the return of a child if it can be established that (Regulation 16(3)):

   a)the person seeking the child’s return:

   i)was not actually exercising rights of custody when the child was retained in Australia and those rights would not have been exercised if the child had not been so retained; or

   ii)had consented or subsequently acquiesced in the child being retained in Australia; or

   b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

   c)the child objects to being returned (such objection being with such strength of feeling beyond the mere expression of a preference or of ordinary wishes; and the child has attained an age, and degree of maturity, at which it is appropriate to take account of his or her views; or

   d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

2. The Court is not precluded from making a return order for the child only because a matter mentioned in Regulation 16(3) is established by a person opposing return (Regulation 16(5)). 

Background

1. The child Y was born in Canberra, Australia in August 2008. 

2. The child’s father, Mr Henfold, was born in New Zealand in 1980.  His mother Ms Henfold, was born in Hawaii, United States of America (USA).

3. The parents were married in Hawaii in 2006.

4. On or about 19 July 2007, the parents travelled to Australia and commenced living in Canberra.

5. On 2 February 2009, the requesting parent (the mother) and the child went to Hawaii on route to Pennsylvania, USA.  They moved to Pennsylvania on 1 April 2009.  They were joined by the father, the respondent to these proceedings, on 2 May 2009 when his Green Card and his visa matters were resolved. 

6. The event giving rise to these proceedings occurred after 16 May 2010 on which date the respondent and the child left the USA to travel to Australia.  This was to be a holiday.  A return ticket was booked to bring the respondent and the child back to the USA on 1 June 2010. 

7. On 25 May 2010, the mother spoke to the father on the “ooVoo” website and informed the father that she wanted a separation, however, that she wanted him and the child to return to the USA.

8. The respondent and the child did not leave Australia and return to the USA on 1 June 2010.  On 15 July 2010, the father commenced proceedings under the Family Law Act 1975 (Cth) in the Family Court of Australia. On 20 July 2010, the mother made an application under the Hague Convention requesting that the child be returned to the USA.

9. The family law proceedings (rather than the Hague Convention proceedings) were listed before Brewster FM of the Federal Magistrates Court of Australia on 2 August 2010.  On that date, his Honour transferred the proceedings to the Family Court of Australia, as well as restraining each of the parties from removing the child from the Commonwealth of Australia.

10. On 19 August 2010, when the matter was next before me, I made orders facilitating mediation between the parties and a Family Consultant of our Court. 

11. On 26 August 2010, the Central Authority filed an application under Regulation 14 of the Regulations seeking final orders that the child be returned to the USA in accordance with the provisions of the Hague Convention.

12. On 27 August 2009, the proceedings under the Family Law Act 1975 (Cth) were held in abeyance pending the outcome of the Hague Convention proceedings. I made directions for the filing of materials. The finalisation of the Hague Convention proceedings was set for a hearing on 26 October 2010.

13. In these proceedings, there was no argument that if the child were found to be habitually resident in the USA on 1 June 2010 when he was due to return to the USA with his father, that the retention by the father was wrongful.  In addition, although the evidence about the law relating to rights of custody in both the States of Pennsylvania and Hawaii was not entirely satisfactory, it was agreed for the purposes of the proceedings that the mother had rights of custody in the USA at the relevant time.  There was also no argument that she was immediately prior to that time exercising those rights. 

14. The application was made within a year of the alleged wrongful retention. 

Evidence

1. The Central Authority relied upon an affidavit of the mother which contained material which would ordinarily not be admissible with the rules of evidence, but which became so as a consequence of the combined effects of s 111D of the Family Law Act 1975 (Cth) and Regulation 29(2). As was conceded in reliance upon s 111D and Regulation 29(2), the admissibility of the material did not necessarily provide any determination as to the weight to be given to that evidence.

2. Affidavits were filed in relation to the law applicable in Hawaii and Pennsylvania, although the deponents were not the subject of any cross‑examination in view of the concessions referred to above.

3. There were affidavits filed also by members of the mother’s family, but these were not relied upon in the proceedings and probably correctly so as they did not appear to address the issues relevant under the Hague Convention and the Regulations.

4. Somewhat perversely, the affidavit of the respondent was the subject of attack in relation to its failure to comply with the Evidence Act 1995 (Cth) and as no provision exists under the Regulations or the Act to exempt it, some parts of the affidavit were not read or were struck out.

5. The respondent, through his counsel, sought to cross-examine the requesting party and this cross-examination took place from Hawaii by telephone.

6. The respondent himself was the subject of cross-examination and re‑examination, and to some limited extent, to give further evidence‑in‑chief.

Applications of the Parties

1. The competing contentions in relation to habitual residence are as follows.  On behalf of the respondent it was contended that the parents and, hence, the child, had no habitual residence and accordingly the Hague Convention was not capable of being validly invoked.  On behalf of the Central Authority, it was argued that the parents were habitually resident in the USA at the relevant time and that accordingly the Hague Convention was capable of being invoked.

2. The question of where a child’s habitual residence actually is may necessarily be somewhat difficult to ascertain in some cases (see, for example, Secretary of the Attorney-General & Stamatelos [2008] FamCA 1117; State Central Authority & Perkis [2010] FamCA 649). The circumstances of this particular case were somewhat unusual in that if it were the case that the child’s habitual residence had to be related to a State (in the USA), it would be difficult, if not impossible, to establish that the child was habitually resident in Pennsylvania.  The mother was present in Pennsylvania, and the father accompanied her to Pennsylvania, for the purposes of her studying.  This course of study was to take about two years and the purposes of her moving to Pennsylvania was specifically to undertake that course of study. 

3. The mother’s family lived (and lives) in Hawaii (in large measure).  When the father failed to return from Australia, the mother returned to Hawaii.  Family law in the USA is a State, rather than federal, jurisdiction.  The Hague Convention relates to the Country (State) of the USA.  Accordingly, if the child is to be returned to the USA in accordance with the Hague Convention, he will be returned to the USA and for all practical purposes that will mean Hawaii.   

4. On the other hand, it is submitted (validly) by the Central Authority that irrespective of whether or not the parties were habitually resident in Pennsylvania, they were habitually resident in the USA.  It is the USA as the party to the Hague Convention to which the child must be returned.

“Habitual Residence”: LK v Director-General, Department of Community Services

1. The High Court of Australia in LK v Director-General, Department of Community Services (2009) 237 CLR 582 provided the most recent, definitive determination as to how the question of habitual residence might be determined. In that decision, the Court noted the differing lines of authority and concluded that there was “…the need to look all of the circumstances of the case. And it is that approach, as described in [P v Secretary of Justice [2007] 1 NZLR 40], which should be followed”.[2]

   [2] LK v Director‑General, Department of Community Services (2009) 237 CLR 582, 600.

2. This has been described as constituting a “broad factual inquiry” rather than a determination necessarily of any settled intention on the part of one, or both, of the parents.

3. The High Court set out the following matters as important, (on pages 595 to 596):

   Even accepting that to be so, because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence.

   Secondly, because a person’s intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place.  Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually.

   Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child.  It will usually be necessary to consider what each parent intends for the child.  When parents are living together, young children will have the same habitual residence as their parents.  No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence.  The assent of the other parent (or a court order) would be necessary.  But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.

   It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances.  And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them.

Discussion

1. Much of the evidence before me dealt with the question of the intention of the parents. 

2. I accept that when the parents first came to Australia as set out above, their original intention was that they would remain in Australia for five years.  To the extent that there is any difference between the parents on this point, I accept the evidence of the father.  He appeared to me to be an honest and truthful witness, often making admissions which were not in his interests. 

3. The marriage was not entirely happy even in those early days and, to some extent, a potential separation was averted by the mother becoming pregnant.  The parents then reviewed their plans for the future and decided that they would move to Pennsylvania to enable the mother to pursue her ambition of studying.  This was not necessarily what the father wanted.  In part of the evidence before me, in a conversation between the parents, it is clear that the father saw himself as accompanying the mother to enable her to fulfil her ambitions, and to that extent, sidelining or postponing his own. 

4. I divert to suggest that if the domicile of origin of the husband was Australia, his time in Hawaii did not disturb that domicile.  His return to Australia may have simply brought coalescence between his physical residence and his domicile.  Of course, the question of domicile is not relevant to the determination of habitual residence as such (LK v Director-General, Department of Community Services, above at 594 and following).

5. Equally, the original domicile of origin of the mother was the USA.  Her travel to Australia in those terms did not disrupt that domicile either, even assuming one was to distinguish between it and a domicile of dependence.

6. The parents’ intention in returning to the USA has now been given something of a gloss by each of them.  This is not to say that they are being dishonest.  Rather, it is the case that events as they have turned out have coloured their ability to think accurately about and describe what happened. 

7. It is probable, in my opinion, having listened carefully to evidence of both of the parents and examining their affidavits that the parents had not given serious consideration to what would happen after the two years that was expected that the mother would spend studying in Pennsylvania.  In fact, as it transpired, the mother was not accepted into that course of study in the year that the parents moved to Pennsylvania.  Both parents worked in night and day jobs to ensure that the child received attention from one parent at all times.  What is clear is that the father’s ambitions were set to one side, although he maintains, (and there was some agreement about this), that it was intended that he would be able to pursue his studies when the mother had completed hers. 

8. What was not clear, (and the husband honestly acknowledged this was so), is where that study might take place.  In reality, it would seem that the parents had considered that this would probably happen in the USA, although the possibility of the father’s studying in Australia could not be entirely excluded.

9. Could it be said that the parents had a settled intention to remain permanently in the USA? The answer to that must be clearly be no.  To the extent that it is asserted that the time that the parents spent in Pennsylvania may have constituted, for example, a change of domicile, particularly on the part of the father, it would seem that this could not, in the circumstances, be satisfactorily established. 

10. I repeat, however, that domicile is not the test.  The parents had lived in Pennsylvania for about a year before the father returned to Australia.  The parents had rented a home and acquired furniture for the home, some of which would be usable in subsequent residences as the father conceded in his cross‑examination.  The parents had each obtained employment and had plans for further study. 

1. It is difficult to say, in light of the assistance provided by the High Court in LK v Director-General, Department of Community Services, just at what point parents might establish that they had habitual residence in one place or another.  One might look back on a long period of residence and see that the habitual residence began on a particular day.  On that day, however, it might be impossible to ascertain that this was the day that habitual residence began, or merely another episode in a series of transitory accommodations.   Although not entirely comparable, an analogy is the establishment of a de facto relationship.  One might look back in time and realise that a particular day was the day that a relationship first blossomed, however, in the moment of that day, the realisation of the significance of what is about to occur may be lost on the innocent individuals involved. 

2. It might be said that one day would not enable a habitual residence to be established, although ten years might clearly establish a habitual residence.  Where on that spectrum sits one year, or thereabouts? It obviously depends on the circumstances of the parties, including, to some extent, their intentions if they are ascertainable, the matters that they have done either in furtherance of a final or settled intention to remain, or as indicative of a mere temporary time in that place. 

3. Difficult though it may be, it seems to me that all of the indications I have set out above demonstrate that these parties had become habitually resident in the USA (as opposed to habitually resident in the State of Pennsylvania). 

4. It is necessarily a factual inquiry in each case about whether the parties have themselves become “nomadic”, as that term was considered in LK v Director‑General, Department of Community Services, where the High Court said (at 595):

   But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person’s place of habitual residence. So, for example, a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.

5. It was urged on me by counsel for the father that that was in fact the situation with these parents.  As I indicated above, this was, to some extent, an attractive conclusion to be drawn.  It was put in counter-point by the Central Authority that if a Court were prepared to make a finding regularly that a person had no habitual residence, it would destroy the objects (and efficacy) of the Hague Convention.  Such a proposition is self-evident, however, if as the High Court in LK v Director-General, Department of Community Services stated, each case must be determined on its own merits and carefully considered in the terms of its specific circumstances without any set criteria for determining the issue, then, it is appropriate to consider in each case those factors which tend toward the conclusion that a child was habitually resident and to contrast with those factors which may suggest were, in essence, nomadic. 

6. While the cost and ease of international travel as a result of the world becoming more globalised means that there may be individuals who have the ability to lead such a nomadic life, I infer from the above paragraph of the High Court that there must be evidence clearly demonstrating that a person is a nomad without habitual residence, rather than presuming that this is so in a great many of these cases.  I agree with the forceful proposition put by counsel for the Central Authority that a Court must be very cautious in making such a finding without clear evidence.  Such a position would fall squarely within the contemplation of that immortal statement of Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 (now enshrined in s 140(2) of the Evidence Act 1995 (Cth)). His Honour stated (at 361 and 362):

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

   …

   The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences.

7. In this matter, while the issues are fairly finely balanced, in my opinion, the evidence of the parents, in conjunction with their physical actions, and the extent that their actions indicate one conclusion rather than another, the correct determination is that the parents, and therefore the child, were habitually resident in the USA at the time of the wrongful retention by the father of the child in Australia. 

Conclusion & proposed Orders

1. Because of the profound effect my determination will likely have on the parents and the child, I propose to allow the parents and the Central Authority seven days to discuss and agree upon the form of orders.  If the parents and the Central Authority are unable to agree upon a form of orders, I will make orders myself at 9.45 am on 3 November 2010.  The matter will be adjourned until that time, unless the parties otherwise submit orders to me in Chambers.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Acting Chief Justice Faulks delivered on 27 October 2010. 

Senior Legal Associate: 

Date:  27 October 2010